Thomas and Fortas, Separated Only By Time

“In several of the most important areas of constitutional law,” Toobin writes, “Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.”

At the same time, Toobin writes that Thomas and his politically ambitious and well-connected wife Ginni are becoming ever more involved with a collection of very conservative interests determined to see, among other things, Barack Obama’s health care reforms ruled unconstitutional. Thomas is more and more the champion on our badly divided Supreme Court of a judicial philosophy that places little if any importance on precedent or predictability in the law. In short, Thomas has become the ultimate activist judge; one not only willing, but seemingly eager to overturn what lawyers and most judges call “settled law.”

By this time next year it’s entirely possible Thomas and his colleagues will have heard the various appeals about the health care reforms and, one way or the other, their decision will send the Court into the middle of the next presidential election. It won’t be the first time the Court has been in the middle of a big political fight, but given the increasingly open activism of Thomas, the Court may well be subjected to a new level of scrutiny and criticism. Already the dots connect a little too comfortably between the ethically challenged Great Society Justice, Abe Fortas, and the Justice from Pin Point, Georgia, Clarence Thomas.

In 1968 a lame duck Lyndon Johnson appointed his old friend and regular political advisor Abe Fortas to be Chief Justice of the Supreme Court. Fortas, already on the Court and increasingly, thanks to his brilliant liberal mind, becoming the intellectual leader of the gang of nine, eventually was forced to resign when his ethical lapses caught up with his liberal politics. The Senate refused to confirm Fortas sending a sharp rebuke to LBJ.

Clarence Thomas would be the last to place himself in the company of an unreconstructed New Deal liberal like Abe Fortas, so let me do it for him.

Both men, decades apart chronologically and poles apart politically, nevertheless brought to the high court a fundamental political agenda. Thomas’ life, before his appointment by George H.W. Bush, had been a life in politics, including work on Capitol Hill and in federal agencies. While it is impossible to diminish Thomas’ compelling, dramatic personal story, he’s where he is because of politics. So was Abe Fortas.

Fortas got his start in the Roosevelt Administration in a series of jobs in the Securities and Exchange Commission. He later held top jobs at the Interior Department and spent two lucrative decades in private practice with always one foot firmly planted in politics. It is a fascinating historical footnote that Fortas provided legal representation for Lyndon Johnson during LBJ’s fiercely contested first race for the U.S. Senate in Texas in 1948. Ever politician, I’d guess, feels beholden to the lawyer who helped secure their election victory. Not everyone has a chance to put that lawyer on the Supreme Court.

Fortas finally sealed his political and judicial fate when it was revealed after his nomination to be Chief Justice that he had an ethically questionable relationship with financial benefactors. He also did something unthinkable for a judge today – he actually sat in on White House staff meetings.

The New York Times reported recently that Thomas, not unlike Fortas years ago, maintains what the paper called “an ethically sensitive relationship” with Dallas real estate developer and GOP fundraiser Harlan Crow. Thomas declines to talk about the relationship or his wife’s work for Tea Party-oriented groups and causes, including groups determined to overturn the health care law. Toobin does quote the Virginia Attorney General leading the charge against the Affordable Care Act as expressing supreme confidence that he’ll have Justice Thomas’ vote when the case gets to the Supremes.

This much is true: no one gets to the United States Supreme Court without political connections and a certain political orientation. It is the way our system works and once on the Court the temptation to put in place through the law one’s own political philosophy must, at times, be overwhelming. But, tempting or not, that’s not the job of a judge. You want to make the law, run for Congress.

At the same time, judges are only able to maintain a certain level of public trust and confidence if they conduct themselves, in public and private, in such a way as to be nearly as pure as Caesar’s wife. Abe Fortas failed the test in 1968. Clarence Thomas is close in 2011.

Ironically, both Thomas and Fortas graduated from Yale Law School, a fact that Thomas now considers one of his great mistakes in life. He tells associates, according to Jeffrey Toobin, that when it comes to speaking at law schools, “he doesn’t do Ivies,” which he considers the unhealthy domain of the nation’s “elites.” Thomas even refuses to sit for a portrait that his law school could display in its hall of fame.

I did notice in perusing this fall’s course offerings at Yale Law that among all the classes on torts, contracts and the Constitution is something called the Ethics Bureau at Yale. The Bureau helps provide practical experience for law students who in turn help clients who can’t afford to pay. In part, the course description reads: “Impecunious clients and the lawyers who serve them are in need of ethics counseling and legal opinions on a regular basis.”

Apparently some judges who are not “impecunious” also need “ethics counseling” on a regular basis. And that Yale course, it should be noted, has no prerequisite.

Summer Reading, Hemingway and Paris

There were times while reading Paula McLain’s novel about Ernest Hemingway’s first wife, Hadley Richardson, and their life in that greatest of all cities, that the Paris the two of them inhabited in the 1920’s was a good deal more interesting than either of them were at the time. Of course, it’s hard to outshine Paris – then or now.

McLain’s book has been praised and panned by critics. I see a little of both in the book. The imagined scenes of Ernest and Hadley rubbing elbows with Scott and Zelda Fitzgerald, John Dos Passos and Gertrude Stein lock in an impression of what these talented, but deeply flawed individuals must have been like. The Paris and France that these characters consume is rich and interesting and real.

The same cannot always be said for the love story between the young Hemingway, trying to establish himself as a writer, and the sturdy, mostly sensible Hadley who seems to shrink in significance as her ambitious, demanding husband gains his voice. She was, after all, Hemingway’s starter wife and perhaps a bit old fashioned for the times and the man. As one reviewer notes, Hadley was a “helpmate,” a woman who gave comfort and support to the emerging artist. She was not, as the attractive cover of the book tries to suggests, a fashion maven with sexy ankles.

I was struck reading this novel, which with its flaws; I have nonetheless recommended to friends, that Hemingway’s posthumous memoir – A Moveable Feast- paints a sympathetic portrait of Hadley. Hemingway even admits in that book that losing wife Number One was one of his great mistakes. And Hadley is sympathetic in McLain’s telling; I just wanted her to be a bit more assertive, less willing to accept everything the great man dished her way. Maybe Hemingway also found that he wanted something more than a helpmate when he was coming of age as a writer and then, as he hinted at the end of his life, he came to regret that he never quite again had what Hadley, the Paris wife, had given him when he was too young to know what a gift it was.

The Paris Wife is a good, if not great summer read. If you like Paris and wonder what the 1920’s there must have been like, it’s most worthwhile. The book will pick you up and plunk you down in a different era and permit you to wander there, soaking up the place that, as Hemingway said, will stay with you forever.

Baseball as It Should Be

Only a Yankee fan ensconced in that new shopping mall in the Bronx called Yankee Stadium could wish that management play more organ music during a game.

I aw my first game in 1934 in the “new” rebuilt Fenway Park in Boston. I long for the days when the game and not a cacophonous rock concert was the attraction.

In wistful moments, I fantasize that I am commissioner of baseball. In addition to a ban on music during games, I would issue the following edicts: no game should be played indoors on artificial turf, and spitting should result in the same fine and suspension as bumping an umpire.

Players would also be reminded that they wear knickers and not pantaloons. Haute couture would best be served if fans could see the distinctive socks that are part of a team uniform – red ones included.

Let the Ordeal Begin

Britain has plenty of problems, as the recent and shocking riots in London, Manchester and elsewhere painfully illustrate. In the wake of the unsettling unrest, Prime Minister David Cameron calls on Britons to fight back against further decline in standards and conduct. We watch with some horror, but also fascination. It is, after all, the Mother Country.

What does it say about a 235 year old democracy that we begin the selection process for one party’s leaders at a state fair in Iowa, where the candidates pay for a choice spot to erect giant tents, some with air conditioned, in order to entice “voters” with BBQ and loud music and utterly simple-minded sloganeering? Welcome to the start of the 2012 American presidential election.

If you were to assemble the top 500 officials in the national Republican Party – senators, members of Congress, governors, top mayors and former office holders – Minnesota Rep. Michelle Bachmann, who won the Iowa straw poll last weekend, wouldn’t be in the top 15 candidates for President of the United States. The seasoned pros in the party know that nominating Bachmann would be a political disaster, yet the Tea Party darling is now considered one of three top contenders for the prize and all thanks to the 4,823 votes she recorded at the Iowa State Fair. That total put her a whopping 152 votes ahead of Texas libertarian Congressman Ron Paul, another person who couldn’t possibly be selected for high public office by a political jury of his peers.

Our process doesn’t necessarily produce the best leaders, but it certainly produces the world’s longest campaigns.

About the best that can be said for our system of selecting presidential candidates is that the winners have survived the ordeal; survived the lengthiest, most demeaning and often nearly devoid of substance process ever devised by the political mind of man, or woman.

That Michelle Bachmann could actually be considered a potentially serious contender for the presidency based upon a record of no accomplishment in the House of Representatives, a stellar ability to craft a simplistic one-liner and a position on the debt ceiling that puts her at odds with every serious economist in the world, not to mention every serious person in her party, is all one needs to know about our candidate selection process. Come to think of it, that description – minus the debt ceiling nonsense – could well have explained the current occupant of the White House at this stage of the political game in 2007.

So, while David Cameron in Great Britain and most leaders in the rest of the world were vetted and selected for political party leadership by a process of careful evaluation by their peers, we run our leaders through a series of increasingly choreographed “debates,” straw polls, caucuses and primaries that reward the person with the greatest physical stamina and the greatest ability to avoid the self-inflicted gaffe.

With Rick Perry, the Texas governor now in the GOP hunt – with perhaps more to come – don’t be surprised if the process of selecting a Republican standard bearer grinds on well into next spring. Consider this scenario: Bachmann, minus a meltdown, wins the Iowa caucus early in 2012. Mitt Romney wins the first primary in New Hampshire and Perry, at home below the Mason-Dixon Line and with the Christian right in South Carolina. wins in that always nasty early contest.

Should that happen, and it’s not inconceivable, the GOP will have three front runners and a contest with all the substance and decorum of a World Wrestling Federation grudge match. Tell me this is a good way to select a potential president.

On Wall Street and the NCAA

The nation’s political chattering classes have had plenty to chatter about over the last couple of weeks – debt ceilings, riots in London, The Gang of 12, Rick Perry, European sovereign debt, S&P credit ratings and whether Barack Obama can become relevant again.

Lyndon Johnson once reportedly switched off the television in the Oval Office after watching the revered and legendary CBS anchorman Walter Cronkite tell the country that the war in Vietnam was unwinnable. “Well,” LBJ said to no one in particular, “If I’ve lost Walter, I’ve lost the country.”

A voice of the inside the beltway progressives, the talented and occasionally snarky Maureen Dowd, isn’t Uncle Walter, but she writes like Obama may have lost her. What Dowd writes has a canary in the coal mine feel about it.

“Faced with a country keening for reassurance and reinvention, Obama seems at a loss,” Dowd wrote this week in the New York Times. “Regarding his political skills, he turns out to be the odd case of a pragmatist who can’t learn from his mistakes and adapt.

“Many of his Democratic supporters [in Iowa], who once waited hours in line just to catch a glimpse of The One, are disillusioned.”

Rather than name names and hold accountable those responsible for the continuing economic mess, Westen said, Obama has utterly failed to address the fundamental need for a president – any president – to be the national narrative setter; to tell a story about what’s gone wrong, how it can be fixed and how the bad guys responsible will be held to account.

In contrast, for example, with Franklin Roosevelt’s full throated condemnation of Wall Street and greedy business leaders as the villains of the original Great Depression, Westen say Obama punted from the first day of his administration. Said Westen, “When faced with the greatest economic crisis, the greatest levels of economic inequality, and the greatest levels of corporate influence on politics since the Depression, Barack Obama stared into the eyes of history and chose to avert his gaze.”

Obama, Westen said, can’t bring himself to assemble the suspects in a political line-up and identify the bad guy(s).

He’s got a point. With this morning’s headlines comparing the economic roller coaster ride of the last few days to the awful days in the fall of 2008, I’m hard pressed to think of anyone in a position of authority and power who has been held accountable for the jobs lost, the mortgages foreclosed and the lives uprooted.

Standard & Poors, by all accounts, totally missed the risks of the subprime mortgage meltdown in the last decade when it should have been front and center judging and publicly reporting such risks to the economy. Now S&P’s nameless suits downgrade sovereign debt in high-minded tones, while appearing on the Sunday talk shows lecturing Washington’s leaders on political responsibility. The ratings agency, meanwhile, lobbies Congress not to require that it report “significant errors” in its own performance.

Accountability is obviously on an extended summer vacation in the Hamptons.

Contrast the macro-world’s lack of accountability on the economy and little things like jobs and mortgages with the penalties for screwing up in college athletics. Boise State University’s long-time athletic director was fired yesterday by the school’s president in advance of the anticipated sanctions that will be leveled against the school for a variety of infractions involving college sports.

Some boosters immediately questioned the decision to fire a 30-year employee and there will be the predictable second guessing of Boise State President Bob Kustra. But as more of the story comes out, give the one-time politician turned college president this much: the new to the big-time Bronco athletic program is facing its first real big-time challenge with the anticipated NCAA sanctions and Kustra’s personnel action just set the standard for compliance at BSU for the foreseeable future. Good, bad or indifferent that is accountability.

The Ohio State University arguably took too long to fire its slippery football coach, but it happened. It’s now reported the school has paid just south of a million bucks to unravel what went wrong with the Ohio State football program.

In a perfect world there are no mistakes. No one needs to stand and take responsibility and be held accountable. But there is a real world out there that is messy and requires accountability. Particularly in a representative democracy, beset with deep economic, social and political problems, accountability has never been more required.

The British poet, essayist, humorist, and much more Dr. Samuel Johnson famously said “When a man knows he is to be hanged…it concentrates his mind wonderfully.” He might also have said it concentrates the mind of those who observe the hanging.

Accountability is not about grudges or getting even and it’s certainly not about shifting the blame. It is about understanding what when wrong and who was responsible, all in the interest of corrective action.

Dr. Johnson also wisely said “hell is paved with good intentions,” which is another way of saying good intentions don’t mend a broken economy or straighten out college athletics. Accountability isn’t the whole answer, but it is a pretty good start.

Not Likely to See His Kind Again

I’ve always thought of Mark Hatfield, the Oregon Republican who died on Sunday, as looking and acting exactly as a United States Senator should. If Hollywood were casting a role for a wise, reasoned fellow to be a U.S. Senator, Hatfield could have played the part. Heck, he did play the part for 30 years.

Most of the obits describe Mark Hatfield as “a liberal Republican,” and that is probably a fine description, as far as it goes. I think of him in the great tradition of Senate independents and independence is way more important in politics than being a Republican, a Democrat, a liberal or a conservative. Hatfield was an independent.

My old friend Joel Connelly correctly calls Hatfield one of the political “giants” of the Pacific Northwest and in his remembrance notes the range of things Hatfield touched, including appropriations, opposition to the Vietnam War, northwest salmon, nuclear disarmament and civil rights. Joel also remembers him, as I do, as one of the most dignified and best dressed guys in politics. Central casting again. Suits don’t make the man, but they don’t hurt, either.

The Oregonian’s Steve Duin remembers, as all who have been close to real politics know, that even the greatest of men walk on feet of clay. Hatfield was complex, could hold a grudge and he relished the perks of power displaying a blind eye to the propriety of accepting gifts from admirers and those whom had benefited from his power.

“Hatfield never lost an election, and rarely campaigned.” Duin writes, quoting the five-term senator as saying, “I am the Senator. I never yield that advantage by becoming a candidate.”

Hatfield was also highly religious and wise in how he applied the lessons he learned as a Baptist who – here is complex again – loved movies and learned early to enjoy dancing. An extensive interview he did in 1982 with Christianity Todayintroduced Hatfield this way:

“He is a Republican, but is known as a liberal in politics. He is against nuclear war, but he is not a pacifist. He supports all sorts of programs to aid the poor, but he is a diehard fiscal conservative. He is a friend of Billy Graham, and he cosponsors a resolution with Sen. Edward Kennedy. He has never been a “wheel” of the Senate’s power structure, but he has become chairman of the powerful Appropriations Committee. He antagonizes his Oregon constituency by voting flatly against a measure 90 percent of them badly want, and they turn right around and reelect him to office. He is a devout evangelical and an active member of Georgetown Baptist Church, but no fundamentalist or evangelical organization has him in its pocket.”

When the role is called for United States Senators from the 1960’s to the 1990’s, I’m betting that the higher power that Mark Hatfield believed in and thought deeply about will want to know how those senators came down on a few issues that define their generation – Vietnam, civil rights, nuclear weapons and treatment of the most vulnerable among us. Flaws and all, Mark Hatfield, the independent, the complex man of faith, was on the right side of history and, who knows, perhaps his God.

Either way, the Northwest has lost one of the true political giants of the 20th Century.

About Me

Since 1975, Marc Johnson has reported on and helped shape public policy in Idaho and the Northwest. He counsels clients on strategic communications and issues management at Gallatin Public Affairs where he serves as a partner of the firm’s Idaho office.